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Baroness O'Cathain: My Lords, I support Amendment No. 161, which has been spoken to by the noble Lord, Lord Avebury, and to which my name is attached.

In Committee, great prominence was attached to the importance of public service broadcasting. It is important that the public service channels—BBC, ITV and Channel 4—are able to broadcast their programmes in a way that makes them easily accessible to viewers across all platforms. There is little point in insisting that our public service channels should produce in their programming a certain amount of regional news if in order to find it you have to scroll down to the nether regions of the electronic programming guide.

In our deliberations on the Broadcasting Act 1996 I fought for top prominence for the public service broadcasting channels in the electronic programming guide. This was accepted. However, some seven years later, we are now re-engaged in the same issue. When we had those debates in 1996 I am certain that we never even considered that Sky would be in a position unilaterally to move the BBC from the top positions 101 and 102 in the EPG—but that is what it recently proposed.

However, I believe that the voices raised in this House—in a period when, by chance, we happened to be debating relevant legislation—made clear the importance that Parliament attaches to the ability of citizens to find their public service broadcasters. Fortunately, as the noble Lord, Lord Avebury, said, the dispute between the BBC and Sky has been settled. But we cannot expect such legislation to be on the Floor of the House when there is a future dispute between commercial platform operators and a public service broadcaster. We need to do more than make our views known. We need to give clarity to the regulatory framework and we need to ensure that public service broadcasters will always have prominence.

Technology has moved on since 1996. The purpose of the amendment is to provide clarity for the regulator in the light of that change. I hope that the Government and my own Front Bench will listen sympathetically to the arguments that the noble Lord, Lord Avebury, and I have made.

Baroness Howe of Idlicote: My Lords, I rise briefly to explain why I have attached my name to the amendment spoken to by the noble Lord, Lord Avebury.

It is important to emphasise that the purpose of the amendment is to ensure that all public service channels remain easily accessible to viewers. This concerns not only the BBC, but ITV, Channel 4 and Channel 5.

As has been mentioned, the BBC and Sky, thankfully, have resolved their current dispute. But ITV's contract, for example, expires in autumn 2004.

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The amendment establishes that public service channels should be at a position on the EPG that is no less prominent than will be the case at the enactment of the Bill.

The amendment also importantly clarifies that when we refer to "due prominence" we mean for the right regional version of a public service channel. This is particularly important for ITV, with its unique regional structure. A viewer in Manchester expects to receive Granada on button 103. The viewer in Belfast expects to receive Ulster TV. How can we urge ITV to uphold its long-standing public service tradition if we are not prepared to will the means to ensure that viewers are guaranteed easy access to their regional services?

Lord Lipsey: My Lords, I rise to speak to Amendment No. 162 standing in my name. I am delighted to see the noble Lord, Lord McNally, back in the Chamber because he gave the House wise counsel in a previous debate. He said that in this dog fight between the BBC and Sky it would be sensible for Parliament to keep its distance. He slightly spoiled the effect by then supporting the amendment drafted by the BBC. Never mind, his advice was wise. It was shown to be so by the agreements, to which the noble Lord, Lord Avebury, has referred, reached between Sky and the BBC without any help from us. Those wise words should resound with us as we consider these amendments.

Again we have to choose between two extreme positions, although "extreme" is perhaps unfair. One favoured by the BBC is put forward by the noble Lord, Lord Avebury, and others in Amendment No. 161, and we have heard the case for it. The other, favoured by Sky, is at the other extreme, arguing there should be no change in the Bill. I am not sure who will put that case. I said from the beginning that I thought that Parliament could do with giving a nudge, but not a push, on this matter—not siding with one side or the other, but nudging in favour of the public service channel. That is the thrust of my amendment. It may be feeble, but it endeavours to say that Ofcom should use its best endeavours to make sure that the public service channels do not lose their present prominence. There may be situations in which it is right for that prominence to be reviewed. If, for example, BBC Four was doing incredibly well and BBC Two was doing incredibly badly, it might be a good idea for BBC Four to be promoted, and Ofcom should allow that. That would register with Ofcom Parliament's will that due prominence should be given to the public service channels. I hope that the Government will be sympathetic.

Lord Crickhowell: My Lords, I agree with virtually everything said by the noble Lord, Lord Avebury, my noble friend Lady O'Cathain, and the noble Baroness, Lady Howe of Idlicote. My former company HTV believes the issue to be of crucial importance for it and similar companies for the reasons that the noble Baroness, Lady Howe, argued well. As to which amendment to choose, I would prefer a firm push

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rather than a gentle nudge, so I strongly support the amendment proposed by the noble Lord, Lord Avebury.

Baroness Gibson of Market Rasen: My Lords, I shall speak to Amendment No. 163 in my name. This is a plea on behalf of smaller broadcasting channels and for clarity within the proposed code of practice. I have placed the amendment at the request of S4C, a channel that broadcasts in Welsh and which I had the pleasure of seeing, if not totally understanding, on my recent visit to Cardiff.

Ofcom has a duty to draw up and revise periodically a code of practice to be followed in providing EPGs and especially to give due prominence to public service broadcasting channels. S4C has already experienced some problems with its placings in Wales, and it does not believe that the due prominence element on EPGs is being followed. EPGs will be a key issue in future broadcasting and may well alter people's viewing habits perhaps more than any other aspect of the digital revolution in broadcasting. Most people do not know the number of the channel that they want to watch but instead surf the channels, as I often do. This presents a problem for channels like S4C, which are not genre based.

For example, S4C hosts a well-known and, I understand, well-respected children's programme, "Planed Plant", which in English is "Children's Planet", but this cannot be found in the children's section of the EPG and has to be searched for. Any codes of practice must be strong enough to protect not only the larger broadcasters, but the smaller broadcasters, such as S4C. The channel number on an EPG is crucial in that the smaller broadcasters do not have large marketing or promotional budgets, so their profile must be prominent enough to give ease of access to them by channel hopping. This amendment aims to ensure that the smaller broadcasters such as S4C are given a fair chance in the code of practice.

5.45 p.m.

Baroness Buscombe: My Lords, I reassert my comments in Committee. We believe that public service channels should have prominence, especially those channels referred to—BBC One, BBC Two, and ITV. The noble Baroness, Lady Howe, referred to ITV's unique regional structure. It is important to ensure that these public service channels are easily accessible across all platforms. Notwithstanding, I sympathise with the amendments proposed. I am still concerned about the prospect of putting something into the legislation as opposed to leaving it with Ofcom. Technology is moving ahead all the time, the introduction of new channels is growing, we are going to have more and more public service channels, and I am concerned about those kinds of channels—such as the History Channel, which does not happen to be a public service channel but has all the characteristics of one—being pushed further down because they do not happen to have that label, PSB.

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The amendments do not answer my continuing concerns. It is important that Ofcom should take on the task early in its life of drawing up a code on the application of EPGs. As noble Lords have said, there has been a long expectation for a code on EPGs to be put forward by Oftel and the ITC. It is important that Ofcom takes this work forward at an early opportunity so that easy access to the channels of viewers' choice is safeguarded, but I am concerned about the lifeline of this legislation, which I mentioned in the last amendment, and the flexibility for Ofcom to be able to respond to what I hope will be an ever-increasing number of channels. There should be more choice for the viewer, good, high quality public service channels, but there should also be no discrimination against other channels that do not happen to be PSB but provide high quality viewing.

Lord Davies of Oldham: My Lords, I sound a note of dreadful warning. The two Front Benches are in total agreement. My contribution is almost otiose after the careful arguments deployed by the noble Baroness, Lady Buscombe. However, I shall also say that as there has been no dissent I hope that the Government's attempt to meet the requirements of the agreement that we struck in Committee are agreed in the form of a government amendment.

First, I turn to Amendment No. 163, spoken to by my noble friend Baroness Gibson. She is right that it is necessary for Ofcom to consult widely, and we expect that to be done. Before it draws up and revises the code on electronic programme guide, they should consult, as we expect them to consult on all significant decisions. I point out to my noble friend that appropriate consultation by Ofcom is already required as part of its general duty to follow the best regulatory practice. We provide for that in Clause 3(3)(d), and, therefore, we do not believe that there is any need for a specific statutory provision regarding this area of consultation, although I do value the fact that my noble friend has emphasised that fact, and it will be part of Ofcom's remit. There is also a danger that accepting a specific amendment might give rise to the implication that Ofcom is specifically enjoined to consult in this area but not in others. In fact, I think that it is recognised that we want maximum consultation by Ofcom on all crucial decisions.

I must say—this relates to a point touched upon by the noble Baroness, Lady Buscombe—that it is not just a question of public service channel providers. It might not be just those providers who ought to be consulted. They are affected by the "due prominence" provision, but they are not the only parties affected by that provision or by the other topics that will be dealt with in the code, such as fair terms between EPG operators and service providers or accessibility for people with disabilities. It is for that reason that we think that it would not be right to make the amendment, even though it is an important reminder to Ofcom of its obligation to carry out due consultation on a matter as important as the code.

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I turn to the amendments to which I shall have the most difficulty replying. I do not want to go too much into the general argument, as I agree with the way in which the noble Baroness, Lady Buscombe, expressed the matter. She may feel that that is a nod of congratulation warmly to be wished, but, in that area, we are in agreement. We are all convinced of the benefits of EPGs and the need for viewers to find their public service channels easily. We are strongly committed to ensuring that public service channels are given due prominence on EPGs.

As was mentioned by the noble Lord, Lord Avebury, an important step forward was taken during the deliberations on the Bill in the agreement reached by the BBC and Sky, which the noble Lord defined with great accuracy. Obviously, I hope that, if similar issues arise in relation to other public service channels, they will also be solved in such an appropriate way. In case there is any doubt, I shall make it clear that, when I talk about due prominence being given to a public service channel, I mean it to apply to all the regional variations of that channel. Each of those variations should benefit from due prominence to the same extent. As it is a matter of public policy, I agree that it is something that Ofcom should address in its code.

For the same reason, I have some sympathy with the provisions in new subsection (2A)(b) and new subsection (2B), proposed in Amendment No. 161, so ably spoken to by the noble Lord, Lord Avebury. I shall consider further whether we should include something to a similar effect in the Bill. Having said that, however, I have reservations. They relate to the reservations emphasised by the noble Baroness, Lady Buscombe. They were also reflected in the speech made by the noble Baroness, Lady O'Cathain, who referred to the fact that things had changed apace since the Broadcasting Act 1996—only seven short years ago.

We are trying to put into statute significant arrangements for the industry, and we are all too aware of the fact that things move on apace and we must come to terms with the rapidity of change. We just do not know how things will evolve in the all-digital world. Our perception of what "due prominence" should mean might change—for instance, when new channels are created. The inevitability of such change is the reason why we have aimed to ensure that Ofcom has the necessary powers and flexibility to regulate EPGs of every form and on every platform. The code will be central to that regulation and will need to balance our policy objectives with the need, to which we have often referred, to leave commercial operators as much room as possible to negotiate their affairs without interference. Finding that balance is not easy. Given the increasing importance of EPGs, which several noble Lords accurately identified, we must think about how we deal with the matter. However, it would be unwise to allow Ofcom only six months in which to draw up that important code.

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We will move towards the significant arguments that were presented. My noble friend Lord Lipsey referred to the concept of the "nudge"; it is a bit more than a nudge. The argument has caused us to think about how we can move towards the objective, while not so confining ourselves in legislation that we cannot keep up with the rapidity of technological change that we are wrestling with.

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